Abdul Razak Valibhoy and Another v Abdul Rahim Valibhoy and Others

• Jurisdiction: Singapore
• Judge: Goh Joon Seng J
• Judgment Date: 10 March 1995
• Neutral Citation: [1995] SGCA 27
• Docket Number: Civil Appeal No 98 of 1994
• Date: 10 March 1995
• Published date: 19 September 2003
• Year: 1995
• Plaintiff Counsel: Harry Lee Wee, Y Jumabhoy and SB Shah (SB Shah)
• Citation: [1995] SGCA 27
• Defendant Counsel: CS Wu and Simon Seow (Donaldson & Burkinshaw)
• Court: Court of Appeal (Singapore)
• Subject Matter: Whether respondents could invoke jurisdiction of court for sale of land where attempts at fair partitioning failed,Application to court to partition or order sale of land,Whether court had jurisdiction to order sale of land contrary to such undertaking,Land owned in undivided shares by tenants-in-common,Whether discretion of court to order sale properly exercised,High Court,Civil Procedure,Jurisdiction,Partitioning of land,Courts and Jurisdiction,Land,Court unable to imply necessary terms as to form of partition that was intended by parties,Consent orders,s 18(2) Supreme Court of Judicature Act (Cap 322),Interest in land,Uncertainty,Contractual terms,Contract,Relevant factors,Undertaking by tenants holding major share in land not to apply to court for sale of land but to partition land in case of dispute

(delivering the grounds of judgment of the court): This was an appeal against the decision of Warren LH Khoo J who ordered, inter alia, the land known as Siang Lim Park comprising lots 76-20 and 76-21 of mukim 25, which the present parties own as tenants-in-common in undivided shares, to be sold by public auction, subject to a reserve price to be agreed by them or in default of agreement to be determined by the court and that the net proceeds of sale to be divided between them in proportion to their undivided interests in the land. At the conclusion of the hearing of the appeal, we dismissed it with costs and now give our reasons for so doing.

The facts

These proceedings arose from a dispute in the Valibhoy family over the land. The family has five sons. Mohd Yunos Valibhoy (Yunos) is the eldest son, who is not a party to these proceedings. The first appellant, Abdul Razak Valibhoy (Razak), is the second son and the second appellant, Hasinah bte Adam, is his wife. The first respondent, Abdul Rahim Valibhoy (Rahim), is the third son, while Mohd Amin Valibhoy (Amin), the second respondent, is the fourth son. The third respondent, Mohd Shariff Valibhoy (Shariff), is the fifth son and Parveen Shariff Valibhoy, the fourth respondent, is his wife.

Together with Yunos, the appellants and the respondents owned Lots 76-20 and 76-21 of mukim 25, the subject matter of this appeal (the land) and also a smaller plot comprising 76-22 and 79-15 of mukim 25 (the smaller plot). On 12 July 1985, Yunos was adjudicated a bankrupt. His share of the properties was thereupon vested in the Official Assignee in bankruptcy who commenced proceedings in OS 555/92 against the present parties to realize the bankrupt`s share in the properties. These proceedings were settled on 19 November 1992 and a consent order was made whereby the bankrupt`s share in the land was conveyed to the appellants and the respondents for the sum of $14,510,000 which was raised from a sale of the smaller plot. As a result, the appellants and the respondents became the owners of the land as tenants-in-common in the following undivided shares:

(i) 1025/4100 share thereof owned by the appellants, and

(ii) 3075/4100 share thereof owned by the respondents,

which represent approximately 25% and 75% respectively of the land.

The consent order in OS 555/92 was made following an undertaking given verbally by the respondents to the appellants. This undertaking was confirmed in a handwritten document which was in turn confirmed by a letter dated 19 November 1992 written by the solicitors for the respondents to the solicitors for the appellants, which read as follows:

M/s John & Tan

49 Beach Road #02-01

Hexagon House

Singapore 0718

By fax and post

Dear Sirs,

Re: OS 555/92 - Proposed purchase of Mohamed Yunos Valibhoy`s 14/82 shares in the undermentioned properties: (i) Siang Lim Properties; (ii) 56, Kandahar Street; (iii) Nos 17 to 25 (odd) Baghdad Street Singapore 0719

This is to confirm the verbal undertaking given by [the respondents] that in the event of the settlement being discussed with all parties in terms of prayers D(i), (ii), (iii) and (iv) of the abovementioned originating summons, resulting, inter alia, in [the appellants] and [the respondents] becoming tenants-in-common of the larger parcel of Siang Lim Park in the share ratios of 25% and 75%, [the respondents] will not exercise the rights to apply to court for a sale of the whole of the said parcel, but will instead agree to the said parcel of land being partitioned so that [the appellants] will obtain their 25% of the partitioned land in specie.

Yours faithfully

- Sgd -

It is common ground that the appellants only agreed to the terms of the consent order as a result of the respondents furnishing the undertaking.

The land, the subject matter of this appeal, contains an area of 17,208.1 sq m and is zoned `residential`. It fronts the Geylang River to the north, Lor 40 Geylang to the east and Guillemard Road to the south. Erected on the land are 86 units of single storey terrace and semidetached houses of which 41 units are rent controlled while 45 units have been decontrolled. Lorong 40 Geylang offers the only access to the land and there is no access to it from Guillemard Road. Under the micro-zoning plan, the major part of the land is permitted for development up to eight storeys except for the portion fronting Guillemard Road where development is restricted to a height of four storeys.

After the sale of the smaller plot was completed, the present parties` solicitors proceeded to negotiate for a partition of the land. The correspondence relating to the partition was initiated by a letter sent by the appellants` solicitors to the respondents` solicitors stating their intention to proceed with the partition of the land. In that letter dated 27 November 1992, the appellants` solicitors also raised the issue of the 41 rent controlled units situated on the land and the necessity of applications to the Tenants` Compensation Board. The respondents` solicitors replied by a letter dated 2 December 1992 and requested the appellants to put up proposals for the `subdivision` of the land. Thereafter, the parties made several attempts to negotiate for a partition of the land and lengthy letters in exchange were written; but unfortunately no agreement was achieved. It was evident from the letters written by their solicitors that the parties themselves were not on talking terms with one another. On 12 March 1993, the appellants forwarded two proposals for partition, Alternatives 1 and 2, to the respondents. The respondents found that the two proposals were unfair and rejected them. The respondents submitted a proposal known as Plan C on 3 June 1993 but this was subsequently withdrawn. On 24 November 1993, the respondents instituted OS 1160/93, asking that the land be partitioned or alternatively that their interests in the land be sold to the appellants at a price to be fixed or alternatively that the land be sold at a public auction.

The High Court hearing

At the hearing of the...